Difficult distinctions in anti-discrimination law: Disfigurement, appearance and disability
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| Author | Hannah Saunders |
| DOI | 10.1177/1358229120927917 |
| Subject Matter | Articles |
Article
Difficult distinctions in
anti-discrimination law:
Disfigurement,
appearance
and disability
Hannah Saunders
Abstract
The Equality Act 2010 provides that someone with a severe disfigurement may fall within
the protected characteristic of disability. However, the parameters of the severe dis-
figurement provision remain uncertain. These parameters are under particular tension
from the related concepts of appearance and disability, which partially overlap with
disfigurement. This article argues that ‘disfigurement’ should be read as encompassing a
broader range of appearance-altering conditions than has yet been recognised. Legal
protection should extend beyond conditions such as scarring to include other visible
differences. The personal, relative nature of disfigurement should also be recognised;
disfigurement should not be viewed as a universal standard irrespective of context, but
as a measure of the extent to which a particular person’s appearance is affected by an
impairment. Resolving the underlying tension between the concepts of disability and
appearance is key not just to addressing disfigurement but also other visible, stigmatised
conditions, including obesity.
Keywords
Disfigurement, disability, appearance, discrimination, social model, obesity, impairment
Sidney Sussex College, University of Cambridge, Cambridge, UK
Corresponding author:
Hannah Saunders, Sidney Sussex College, University of Cambridge, Sidney Street, Cambridge CB2
3HU, UK.
Email: hes72@cam.ac.uk
International Journalof
Discrimination and theLaw
2020, Vol. 20(1) 21–44
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229120927917
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International approaches to equality rights for people with disfigurements vary consid-
erably. For example, while France prohibits discrimination on grounds of appearance,
1
and the United Kingdom adopts a narrower approach of prohibiting discrimination
against someone who has a severe disfigurement,
2
the EU recognises neither appearance
nor disfigurement as a justification for equality rights. The variation is perhaps best
encapsulated by the position in the United States, where federal law includes ‘cosmetic
disfigurement’ as in impairment under the Americans with Disabilities Act of 1990,
3
but
various state and municipal codes also prohibit discrimination on ground s including
personal appearance,
4
height and weight
5
and physical characteristics.
6
This article will
focus on the legal position in the United Kingdom but, in doing so, will address inter-
nationally relevant distinctions between the concepts of disfigurement, appearance and
disability.
The first part of this article sets out what we know about the meaning of disfigure-
ment, and how interpretive approaches can ascribe a clearer meaning to the relevant
domestic statutory provision. The second part considers how disfigurement differs from
the concepts of appearance and disability and how the relationship between these terms
can be defined through an analysis of models of disability, legislation and relevant case
law. It identifies several respects in which the statutory provision in the United Kingdom
falls short of its own implicit aims, and it will be argued that ‘disfigurement’ should be
read as encompassing a broader range of appearance-altering conditions than has, to
date, been recognised in UK law. Finally, the third part evaluates the extent to which a
new definition of disfigurement could alleviate some of the identified weaknesses in the
law in the United Kingdom.
What is a ‘disfigurement’?
Section 6 of the Equality Act 2010 (‘The Act’) provides the following definition of
disability:
A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out
normal day-to-day activities.
Although the emphasis of this definition is functional
7
in that it is focused on effects on
abilities, the Act also provides that someone with a severe disfigurement is deemed to
meet the definition of disability
8
:
An impairment which consists of a severe disfigurement is to be treated as having a
substantial adverse effect on the ability of the person concerned to carry out normal day-
to-day activities.
Surprisingly, the Act contains no further definition of the word ‘disfigurement’. Nor
does EU law; the disfigurement provision in the Act does not stem from EU law. The
22 International Journal of Discrimination and the Law 20(1)
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